NY IHO #2012-ih-752: New York City...

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FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: March 23, 2012

April 4, 2012

May 11, 2012

Actual Record Closed Date: May 25, 2012

Hearing Officer: Jeanne M. Keefe, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 23, 2012

Attorney (Via Telephone) — Student

Attorney (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 4, 2012

Attorney — Student

CSE District Representative (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 11, 2012

Attorney — Student

Parents

Grandmother — Student

CSE District Representative — DOE

School Social Worker (Via Telephone) — DOE

INTRODUCTION

On February 17, 2012 I was appointed as the Impartial Hearing Officer (“IHO”) to conduct a hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”) 20 United States Code, section 1415 (f) (1), concerning a dispute involving the special education program of . (“the student”).

BACKGROUND

The , the classification is not disputed. The student attends ) a New York State approved non public school. A request for an impartial hearing was filed on 2/14/12 by on behalf of the Parent in which it was asserted that the Individualized Education Program (IEP) developed at a CSE meeting on 5/25/11 was procedurally and substantively flawed. The Parent was partially in agreement with the IEP as in continuing the student at Specifically the Parent disagreed with the removal of the 10 hours of SETTS service per week that the student had been receiving for a number of years. The single issue addressed in the impartial hearing was whether the student should receive 10 hours of SETTS services per week for the 2011-2012 school year. The services had been provided to the student pursuant to the May 14, 2010 IEP and several prior IEP’s. The last IEP for the student dated 5/25/11 did not recommend 10 hours of SETTS services per week. The student continued to receive the SETTS services through February 2012 pursuant to a resolution agreement and memorandum (Parents Ex. B)

THE DOE’S CASE

The DOE argues that it provided the student with FAPE for the 2011-2012 school year. The DOE asserts that the IEP of May 25, 2011 is both procedurally and substantively sound and provides the student with FAPE. Further, is an appropriate placement and affords the student with all the academic benefits of ABA services and those 10 hours of SETTS per week are unnecessary as the student is receiving all the services and support he needs to derive meaningful educational benefit from .

The DOE called one witness, , School Social Worker. Ms. testified that the students name sounded vaguely familiar but that they did many cases (3 or 4 a day) and did not recall the student or the IEP. (t. 82) Ms. was unable to provide any substantive testimony about the IEP meeting because she did not have any independent recollection of the student or the meeting itself. Ms. was given the opportunity to review the IEP, and did so, but it did not refresh her recollection. (t. 87-88)

THE PARENT’S CASE

The Parent argues that the DOE has failed to provide the student with free appropriate public education (FAPE). They argue that the District has historically agreed to provide the student with 10 hours of SETTS per week and that before they can change an IEP or recommend a change in services there should be a report or documentation to substantiate such change.

The Parent called one witness, In the Parent. The Parent testified that the student has been receiving 10 hours of SETTS services per week since approximately 2007 pursuant to an IEP. (t. 98) The Parent stated that he had been receiving similar services during early intervention but that when he started at the were stopped and the students . In or around 2007 the provision for the 10 hours of SETTS services per week were included in the students IEP (t. 99)

The Parent attended the IEP meeting of May 25, 2011 and requested the continuation of 10 hours of SETTS weekly. She testified that Ms. told her that she is not authorized or allowed to include those services in the IEP anymore. The Parent testified that there were no documents or evaluations provided or other explanation referred to at the meeting to support the cessation of services to the student. (t. 100-101)

The Parent testified that the student receives the 10 hours of SETTS services per week from . She stated that no one from the provider, , or other services that he receives have told her that the student no longer needs the 10 hours of SETTS services per week. (t. 102) When the Parent received the final notice of recommendation (FNR) she signed it and added a note that stated as follows “I agree with the DOE that the is an appropriate placement …I also believe that … continues to need to receive the 10 weekly hours of SETSS/ABA services that were on his prior IEPs but removed from this one.” (Parents Ex. B) She states that she hand delivered it to the DOE but received no response. (t. 102-103)

The Parent testified that comes to her home six hours per week and she and the student go to for four hours a week. (t. 106) She states that she believes that the services are beneficial in that the student is . It is also beneficial because she observes and participates and learns how to . She notes that when the student has a vacation his . (t. 107-109)

On cross examination the Parent stated that school but noted that it is not strict, they apply while teaching the student. (t. 111)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The Individuals with Disabilities Education Act (IDEA) (20 U.S.C. 1400-1482) has as its core tenet the assurance that students with disabilities have available to them a free and appropriate public education (FAPE) (20 U.S.C. 1400 (d) (1) (A); see Schaffer v. Weast, 546 U.S. 49, 51 (2005); Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81, 200-01 (1982); Frank G. v. Bd. of Educ., 459 F.3d 356, 371 (2d Cir. 2006). A FAPE includes special education and related services designed to meet the student’s unique needs, provided in conformity with a written IEP (20 U.S.C. 1401 (9) (D); 34 C.F.R. 300.17 (d); see 20 U.S.C. 1414 (d); 34 C.F.R. 300.320). As noted by the State Review Office in Application of a Student With A Disability, Appeal No. 11-068 the burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition for a unilateral placement has the burden of proof regarding the appropriateness of such placement. (Educ. Law Section 4404 (1) (c); see MPG v. New York City Dep’t of Educ., 2010WL3398256 at *7 (SDNY Aug 27, 2010). In the case at hand the Parent is seeking to maintain the same level of services that the student was receiving prior to the issuance of the May 25, 2011 IEP.

I find that based on the testimony adduced at the hearing that the DOE failed to provide the student with FAPE for the 2011-2012 school year in that they failed to provide the student with 10 hours of SETTS services per week in the May 25, 2011 IEP. The DOE has failed to provide any testimony, evaluations or documentation to support its position that the student is now receiving all the services and support he needs based on his enrollment in . It is not disputed that the student had been receiving 10 hours of SETTS services per week since 2007 and yet the DOE’s only witness, Ms. was unable to provide any insight in to the reasons, evaluations or documentation, if any, that the IEP team relied on when removing the SETTS services after providing said services for approximately four years. In fact the witness was only able to testify that she was present at that meeting because her name and handwriting was on the IEP. In addition, I find the testimony of the Parent credible when she stated that when she raised the issue of the continuation of the 10 hours of SETTS she was told by Ms. that she was not authorized or allowed to include those services in the IEP anymore. It appears that a predetermined decision was made to cease providing the services based on considerations other then the needs of the student or the provision of a free and appropriate education. The Parent testified that the student is still in need of the services and continues to receive a benefit. The Parent also entered an affidavit from the provider (Parents Ex. FF) detailing the services provided and the need for the continuation of services.

ORDER

Therefore, it is hereby ordered that the Department of Education shall continue to provide the student with 10 hours of SETTS services per week as presently provided by for the 2011-2012 school year. Dated: June 1, 2012

JEANNE M. KEEFE, ESQ.

Impartial Hearing Officer

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PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”

(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.

DOCUMENTATION ENTERED INTO THE RECORD ON APRIL 4, 2012

A. Impartial Hearing Request and Proof of Transmission, Parent

Dated 2/14/12, 13 pages

B. Letter Motion Regarding Pendency with Attachments, Parent dated 3/23/12, 51 pages

New York City Department of Education, Impartial Hearing Decision